Aadhaar Privacy Petition – Next hearing in SC on 25th July

Aadhaar card started out as simple identity card provided to all Indians with the motive to benefit marginalized sections of society who have no formal proof of identity and hence experience difficulties in accessing various welfare schemes. But slowly it turned into a card mandatory for receiving all/any benefits from the government from buying cooking gas to demanding information under the Right to Information Act (RTI).

Recently, it got into light with a question to invasion of privacy. The registration mandates all the personal information of an individual along with the attestation via thumb prints and iris scans.

In August 2015, the Supreme Court has mentioned the question of constitutional validity of the fundamental right to privacy to a larger bench.

On July 12, 5-Judge bench was also set up to manage the Aadhaar related matters to hear the petitioners who challenged the constitutionality of the Aadhaar project primarily against the biometric details of the citizens to access welfare and benefits under the scheme is a violation of the right to privacy. The 5-judge bench is set up to decide the future of Aadhaar which has become the pillar of government welfare programmes, the tax administration network and online financial transactions.

The five judge bench comprising Justices J. Chelameswar, S. A. Bobde, D. Y. Chandrachud and S. Abdul Nazeer – said that the nine-judge bench would commence hearing on Wednesday and would decide on the issue as to whether the fundamental rights, described under Part III of the Constitution of India, also include the right to privacy.

The order came as a result of a batch of petitions challenging the constitutional validity of the Aadhaar scheme.

The petitions were referred to a larger bench in 2015 when then attorney general Mukul Rohatgi had referred to the inconsistencies in the past apex court verdicts and said that the issue whether right to privacy was a fundamental right or not, needed to be settled first.

According to legal experts, if the nine judges decide that privacy is a fundamental right, the issue will then be thrown back to the current five-judge bench which will define the contours and limitations of this right to privacy and consequently decide on the validity of Aadhaar.

The Supreme Court on 18th July sets up a 9 judge bench headed by Chief Justice Jagdish Singh Khehar, and comprises of Justice J Chelameshwar, Justice S A Bobde, Justice RK Agarwal,Justice Rohinton Fali Nariman,Justice Abhay Manohar Sapre,Justice D Y Chandrachud,Justice Sanjay Kishan Kaul and Justice S Abdul Nazeer to examine whether right to privacy is a fundamental right under Constitution. [The nine-Judge Bench deals with limited issue of right to privacy and matters challenging the Aadhaar scheme would be referred back to a smaller bench].

Before a nine-judge bench of the SC hearing the validity of Aadhaar, challenged on the grounds of violating the right to privacy, attorney general K K Venugopal had cited two SC judgments–one by an eight judge bench in 1954 and another by a six-judge bench in 1962–to argue that privacy was a common law right and petitioners could not complain about breach of privacy due to collection of biometric data of citizens for Aadhaar.

According to Supreme Court, if private companies like Apple can have the personal data of the users why not the Government? Justice DY Chandrachud also stated that 99% of the people are unconcerned and not aware of the purpose for which data is collected. He also argues that citizens are also disclosing huge amount of information virtually about their private and personal lives.

To which petitioners lawyer, Sajan Povayya says that

I have a contract with private parties – if they breach it, I can sue them. But there is no contract with the government.

Gopal Subramanium a senior lawyer for the petitioner says our constitution gives us liberty to live life which also includes freedom from encroachment on his or her privacy. But according to the Supreme Court the right to privacy is not absolute hence, the legislature cannot be stopped from imposing reasonable restrictions.

The Aadhaar card has been mandated for a number of services such as the opening of bank accounts, the payment of taxes or any payment of public money.

The final call on the matter is still on hold. The next hearing will be on July 25th.